What about the Children? The Emerging Case for a “Child Exception” to First Amendment Protections

What to do about the influences of media and advertising on children? Generally, the saying goes that where you stand depends on where you sit–but that was not apparent at today’s event on children and media.

There were 4 seats (plus moderator) at the panel on “Media, Kids, and the First Amendment” that was co-hosted by Georgetown Law School and Common Sense Media–a professor, lobbyist, FCC regulator, and attorney general. Surprisingly, while there was common ground to be shared, only the lobbyist was truly advocating on behalf of a strong First Amendment.

The Professor: Angela Campbell. She doesn’t see a need for differing legal analysis for broadcast TV or the Internet. Media is media. But she also would like to see all laws meant to protect children be subject to intermediate scrutiny by a court, not strict scrutiny (so that more regulations could be passed). She also thinks the fleeting expletives case (the Fox case) is a joke. Where does she sit?Mostly on the side of Free Speech. Some laws are necessary to protect children, but we need to focus on the harm and weigh the costs of passing law versus not passing law. But the intermediate scrutiny is troubling for free speech advocates.

The Lobbyist: Dan Brenner. He worries about laws regulation communications as being vague (what does “indecent” mean?) and overbroad (makes legitimate speech unlawful). The Maine predatory marketing law that NetChoice has engaged in is an example of being both vague and overbroad. Where does he sit? Firmly on the side of Free Speech. Dan made a powerful case that regulators have better things to do than worry about the occasional F-word or wordrobe malfunction on TV.

The Attorney General: Douglas Gansler. He trumped up the AG agreement with MySpace, talked up age verification as a way to solve our online ills, said Criagslist was running a virtual brothel with its adult ads, and talked about how Maryland teaches Internet safety in the schools. Where does he sit? On the other side of Free Speech. AG Gansler was disappointing. He talked tough on crime and forcing industry into “voluntary” agreements to effectuate his agenda. But it wasn’t clear he had identified the harms. Statements such as “everyone agrees” or “you know it when you see it” just aren’t nuanced enough coming from a state’s highest ranking law enforcer.

The FCC Regulator: Kim Matthews. She described the FCC’s August report on Child Safe Viewing Act and the recent NOI about empowering parents and protecting kids. Where does she sit? It is hard to tell which side. Despite the fact that Kim works at the FCC (which is not known for its 1st Am sensitivities) she came across very evenhandedly. In response to my question about regulating health-related information, she said that kids rely on the Internet for valuable health information and that we shouldn’t cut-off that access.

Overall, it was the lobbyist Dan Brenner that was carrying the first amendment flag. And while it is his clients that would be regulated, ultimately he’s carrying the flag for citizens that would lose out if there were more speech restrictions. And while this was a panel devoted to the role of government, educational efforts and parental involvement are the first line of defense to what people might consider content and marketing not suited to kids. There has to be a better way at protecting children and preserving free speech than just passing more laws.

What a strange framing from Campbell. The level of scrutiny is determined by the protected constitutional interest at issue—here, speech. The protection of children is the countervailing state interest placed in the balance at whatever level of scrutiny is involved. She's free to argue that child protection should be considered sufficiently compelling to trump speech rights in more cases than it currently is, but categorically tweaking the level of scrutiny applied is a bizarre–and I'd think wrongheaded–way to go about it.

juliansanchez

What a strange framing from Campbell. The level of scrutiny is determined by the protected constitutional interest at issue—here, speech. The protection of children is the countervailing state interest placed in the balance at whatever level of scrutiny is involved. She's free to argue that child protection should be considered sufficiently compelling to trump speech rights in more cases than it currently is, but categorically tweaking the level of scrutiny applied is a bizarre–and I'd think wrongheaded–way to go about it.